1. Introduction

1.1 The Library Association is the Chartered professional body for librarians and information managers and represents some 26,000 members drawn from the whole spectrum of the economy - including business; industry; the health and voluntary sectors; central and local government and public library services. Among the purposes of the Association set out in its Royal Charter are:

• To scrutinise any legislation affecting the provision of library and information services and to promote such further legislation as may be considered necessary to this end.
• To promote and encourage the maintenance of adequate and appropriate provision of library and information services of various kinds throughout the United Kingdom, the Channel Islands and the Isle of Man.

1.2 The Library Association attaches a high value to freedom of information which is considered to be a core responsibility of its members. The Association believes that the library and information profession is uniquely placed and skilled to defend and deliver freedom of information.

The Association’s Policy on Information Access states that:

The right of access to information is essential for a civilised society. If citizens are to exercise their democratic rights, and to make information choices, they must have access to political, social, scientific and economic information. If our culture is to thrive and to grow, people need access to the widest range of ideas, information and images.

The Library Association’s Code of Professional Conduct binds its members to uphold its policy on access to information.

2. General Comments

2.1 The Library Association warmly welcomes the publication of the Government White Paper: Your Right to Know.

We support the objective of encouraging more open and accountable Government by establishing a general statutory right of access to official records and information. We particularly welcome the explicit acknowledgement that freedom of information will require a change of culture throughout many public bodies.

The Library Association endorses the proposals contained in the White Paper and looks forward to a Freedom of Information Bill that is no less robust.

2.2 Two general points underline the Association’s more detailed response.

The first concerns the critical importance of information resource management to the success of freedom of information. Implicit within any open government regime is the understanding that information can only be made available to the citizen if it can be accessed. It will not be enough to espouse the philosophy of free access if, in reality, citizens have no way of knowing what information exists or where it is held. Sound principles of information handling and retrieval are the foundations of freedom of information.

A Freedom of Information Act will create a very significant need for professional information skills and training and for common systems and procedures. The Association would welcome future opportunities to work with Government to support these developments and to contribute the professional expertise of our members.

The second general point concerns equality. Experience in the library and information profession has shown that a complex society throws up a diversity of information needs which must be met in a variety of ways. We would wish the Act to make explicit that the needs of all citizens must be met without the introduction of extra costs or barriers.

3. Scope of the Act

3.1 The Library Association is pleased to see that the scope of the proposed legislation has been drawn widely and includes many bodies, beyond central and local Government, which were not covered in the earlier Open Government Code of Practice.

We support the proposal to include the right of access to both records and information and acknowledge that the Act will take account of future changes in techniques for creating, processing and storing information.

3.2 The right of access will apply to recorded information held by a public authority. If an authority does not hold the information requested it may choose whether or not to obtain it but would not be obliged to do so. Many public authorities outsource their data processing and in such circumstances may be said not to hold such data. Clear drafting of the Act is needed to ensure that outsourced data is covered, otherwise a loophole might be created whereby public authorities might outsource their management and handling of sensitive data explicitly to avoid disclosure.

4. Duties to publish information

4.1 The proposal to impose a requirement on public authorities to make certain information available as a matter of course is welcome.

The Library Association would like consideration to be given to a statutory right for public libraries to claim a deposit copy, without charge, of any publication produced by public authorities in their geographic area. Public libraries are, and will remain, the most widely used, accessible and popular point of access by most people to official information. Under the Government’s proposed National Grid for Learning public libraries will soon provide a nationwide network of public access points to the Internet and other electronic sources. The Government is urged to work closely with public library authorities to explore the extent to which the public library network can help the Government to meet its Freedom of Information objectives. The Library Association would be very pleased to facilitate such a discussion between Government and our members.

5. Exclusions and Gateways

5.1 The White Paper proposes to exclude certain limited categories of information held by public authorities. We regret that, under the proposed provision, certain information which is presently available under the provisions of the Open Government Code of Practice will be excluded. This arises from the use of blanket exclusions of whole classes of information. It would be better to avoid class exclusions altogether and to exempt particular information or part of records as deemed necessary against a substantial harm test.

5.2 We welcome the determination that Freedom of Information legislation should be open, fair, straight forward and simple to operate both from the point of view of the applicant and of those who are required to provide the information. However, the basic tests of reasonableness for applicants outlined in the White Paper - the gateways - need a good deal of clarification.

Specifically:

5.2.1 disclosure could be refused for information which has already been published and is still reasonably available. Having in mind Government’s practice of publishing tradeable information at commercial rates, either directly or through third parties, any definition of reasonably available must take account of the cost to the information seeker.

Government’s practice of making information available on the World Wide Web is commendable, but information which is only available electronically, or where the printed version carries a higher charge, cannot be said to be reasonably available. The vast majority of citizens do not have easy access to the WWW and are unlikely to do so for many years.

In the case where a public authority has passed information to a third party to publish the originating authority must continue to have a residual responsibility to provide access to that information or to guarantee that the third party will maintain availability indefinitely. Without such guarantees this provision will effectively exempt the public authority from responsibility once its information has been passed on, no matter to whom or for what purpose.

5.2.2 disclosure could be refused for information which is to be published at a future date. This will serve to avoid premature disclosure of information. However, if refusal is on this ground, publication plans, including timescale and charges should be stated. An enquirer should not be made to wait an unreasonable time for information just because of publication schedules.

5.2.3 applications which are not specific enough to provide the relevant authority with a reasonable indication of what is being sought could be refused. In the absence of published catalogues, indexes, databases of holdings, trained information staff and guidance for the public, it is likely that a very significant number of applications will fall at this hurdle.

It will not be easy for members of the public to formulate their enquiries nor for hard pressed public servants to unravel genuine, yet poorly articulated, requests for information. We would urge that consideration be given to how citizens are to be given assistance and what training is to be given to information providers.

5.2.4 multiple applications from the same source for related material may be refused. Again, unless applicants receive guidance as to where, within Government, information is held they may have to submit multiple applications, without any wish to be vexatious, but simply because they are faced with an apparently impenetrable Government machine.

Freedom of Information guidelines will need to address the question of "ownership" of a request for information. Without this an enquirer may be endlessly passed on with no-one charged with the responsibility of securing a satisfactory outcome.

5.3 The Library Association welcomes the statement that the object of FOI should be for public authorities to be helpful. However we believe that greater consideration is needed to the gateways in the White Paper, and to the need for proper information resource management if the gateways are not to appear more like barriers to ordinary citizens.

6. Costs

6.1 The White Paper recognises that FOI necessarily carries costs but states that cost is not a reason for refusing to have FOI. The Library Association endorses that view. However, there will be resource implications and these will need to be addressed. In a written answer in the House of Commons on 29 January 1998 Dr David Clarke estimated that the cost operating FOI is in the order of £26.5 million start up costs, and an annual cost of £23.5 million thereafter. Much of this cost burden will fall on public sector organisations, which are subject to severe budget constraints. The potential costs to public library services, in particular, could be considerable.

7. Charges

7.1 As a matter of principle the Library Association believes that access to public information should be free of charge. Any charge however small will be a barrier to some citizens in exercising their rights to information. The barrier of cost is likely to be most adverse to members of society who are already disadvantaged and will be likely to further compound the divide between the "information haves" and the "information have-nots"

7.2 While a charge of £10 may appear reasonable, experience suggests that many applicants will need to make several requests, addressed to a number of agencies, in order to follow a particular line of enquiry. The charges will therefore be likely to accumulate.

The absence of published information about where records are held within the government structure, and the lack of indexes and catalogues will be likely to compound this problem.

7.3 Under the draft proposals public bodies would be entitled to charge an application fee for all requests. If they choose to do so, this will introduce charges for information which is currently provided at no charge under the provisions of the Code of Practice and the Local Government (Access to Information) Act 1985.

7.4 Public authorities are also to be permitted to set their own charging schemes for enquiries which involve additional work and costs. Under existing practice there is considerable variation between Government Departments as to what is considered a reasonable charge. The White Paper suggests that the Freedom of Information Act will lay down charging parameters and we would hope that those would be set at the more liberal end of the charging spectrum and should include minimum amounts of free search time, maximum rates for subsequent searches and for photocopying.

7.5 We support the proposal that the Information Commissioner should have the power to waive charges where disclosure is in the public interest but would prefer the onus to be placed on the public authority to do this, rather than making it a matter for appeal by the applicant.

7.6 On the question of two-tier charging designed to impose higher charges on commercial users of the Act. This may at first sight seem desirable, particularly bearing in mind the experience in the USA where the majority of the users of Freedom of Information provisions are businesses. Government is obviously reluctant to subsidise commercial companies. However, many years of experience in managing access to library and information resources has shown that it is often impossible to distinguish between commercial and non-commercial use of information. For example, at what point does research undertaken in a university become commercial? Not-for-profit organisations increasingly have enterprise activities, how are they to be distinguished from commercial companies? Based on our experience of resource management and library networking we would recommend a single charging structure designed to simplify access.

8. Tradeable Information

8.1 The government has for many years generated revenue through charging commercial rates for certain information based services. This charging regime is underpinned by Crown Copyright.However, the Governments legitimate desire to exploit its information resources must not be allowed to obstruct the citizens right of access, either by withholding information pending publication or by pricing it beyond the reach of individuals or community or voluntary groups.

The Library Association,in its response to the consultation on Crown Copyright, will suggest that Crown Copyright should be waived in relation to "raw" information - that is, information to which no value has yet been added. We believe that such information should be freely available. Moreover we would advocate that there should be a duty to lodge such information with public libraries so that it is easily accessible. This would also incidentally, transfer the cost burden from Government to public libraries.

8.2 The library community has not always been well served by Government’s tradeable information policies. There have been instances when information originated at the public expense has been traded to a third party, value added and then published at a commercial rate way beyond the means of public sector libraries. This problem continues and may reappear in a different guise for electronic data if cognisance is not taken of the cost of commercial licences for multiple access. We would, therefore, recommend that statutory information should not be published commercially.

9. Disclosure Decisions

9.1 We welcome the proposal to reduce the present number of exemptions under the Code of Practice on Access to Government Information, the presumption of openness and the importance of keeping disclosure decisions as simple and straight-forward as possible.

We particularly welcome the proposal that the Act should not contain any exempt categories or classes of information or record but that exemptions should be assessed on content, records being disclosed partially following any necessary exemptions rather than withheld altogether.

We acknowledge the obvious need for certain information to be exempt from disclosure on grounds of national interest but we are glad to see that a test of substantial harm will be applicable to all but one of the seven specified interests governing disclosure.

9.2 We cannot however reconcile this with the wholesale exclusion of certain of the security services. We regret this use of class-based exclusions and consider that content based exemptions would work as effectively here as elsewhere.

9.3 Since the Government intends to preserve the Official Secrets Act, the Freedom of Information legislation must be very clearly drafted so as to ensure that no conflict of responsibility arises for individuals, such as librarians in government offices, who might be subject to the Official Secrets Act.

10. Data Protection

10.1 The two regimes of Freedom of Information and Data Protection will cover the same ground in providing access for an individual to data held about them by public authorities. It is doubtful whether there can be a neat interface between the two types of legislation but complexity in the overlap between the schemes or difficulty in determining the boundaries should not work against the ordinary citizen’s rights.

11. Review and Appeals

11.1 We welcome the independent review and appeals mechanism proposed in the White Paper. We welcome the enforcement powers proposed for the Information Commissioner, in particular the power to refer to the Court any failure to comply, which gives the benefits of a legally binding order without the costs of Court action.

We have some concerns that there is to be no right of appeal to the Courts. We have a good deal of sympathy with the need to prevent a public authority, which is reluctant to disclose information, using the Court appeals procedure to delay compliance or to push up the costs beyond the means of an individual applicant. None-the-less, the lack of an appeal beyond the Commissioner is out of line with the Data Protection procedure and would appear to contravene the European Convention on Human Rights.

12. Public Records

12.1 The proposed Freedom of Information legislation will provide an opportunity to reformulate the criteria for withholding historical documents beyond 30 years and will improve the public access to historical documents before 30 years. We therefore welcome the proposal to incorporate the rules relating to historical records into the Freedom of Information Act.

We strongly endorse the White paper’s acknowledgement that:

A Freedom of Information Act can only be as good as the quality of the records which are subject to its provision. Statutory rights of access are of little use if reliable records are not created in the first place, if they cannot be found when needed, or if the arrangements for their eventual archiving or destruction are inadequate.

12.2 We would suggest that the obligation on departments should go beyond records management to include information resource management and that public authorities will need to have regard to best practice guidance from the library and information profession as well as the Public Records Office. We suggest that the issues facing public authorities are rather wider and more complex than what is generally encompassed within the concept of records management. We will of course give every support to the Public Record Office, which is an institutional member of the Library Association.

13. Making Government More Open

13.1 The White Paper states that a Freedom of Information Act will bring with it substantial obligations for public authorities. Among these will be the need to develop common standards of practice which can be transferred across organisations including Central Government, local authorities and the NHS. Such standards are in use across the library and information network, which includes all public bodies and the private sector also. Without a similar network of co-operation, information exchange and standards of practice it is difficult to see how Freedom of Information objectives will be realised.

13.2 The White Paper stresses that public authorities must practice active openness. A requirement to create and publish indexes, catalogues and databases will be critical to this. Good information resource management practice will also help to reduce future costs of information retrieval.

13.3 The Library Association sees an important role for many types of libraries in public authorities in holding information and providing access and assistance for individuals and organisations who are seeking information. Librarians will have an important part to play in helping to implement the information and records management policies which will be necessary within their own organisations. Librarians will also be ideally placed to mediate between enquirers and public authorities.

13.4 We also advocate a particular role for public libraries as a one-stop shop point of access to the full range of information published by public authorities. We would like to explore the possibility of establishing a formal support role arrangement with the new Office of the Information Commissioner, perhaps drawing on the experience of Scandinavian public libraries.

14. In Conclusion

14.1 Finally, the Library Association would like to suggest that our members have considerable experience and knowledge in this area and we would be glad to assist the Freedom of Information Unit in framing the advice and guidance for applicants and to share our skills of expertise with officials.

The Library Association is the professional body for library and information personnel. It has 26,000 members working in all sectors of the economy. Under the terms of our Royal Charter, awarded in 1898, the Library Association has, amongst other duties, responsibility to:

• Promote and encourage the maintenance of adequate and appropriate provision of library and information services of various kinds throughout the UK
• Promote the better management of library and information services
• Promote the knowledge, skills, position and qualifications of librarians and information personnel
• Maintain a register of Chartered members, qualified to practise as professional librarians and information personnel
• Represent and act as the professional body for persons working in or interested in library and information services.

The Library Association, February 1998